20-R-10 - Amendment to the Professional Services agreement with Lockwood, Andrews and Newnam Inc - relating to the 2018 Drainage Maintenance ProjectsRESOLUTION NO. 20 -R -10
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS AUTHORIZING AN AMENDMENT TO THE PROFESSIONAL
SERVICES AGREEMENT WITH LOCKWOOD, ANDREWS, AND
NEWNAM, INC., RELATING TO THE 2018 DRAINAGE MAINTENANCE
PROJECTS, AND OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City ") has entered into an agreement
for design, bid, and construction phase engineering services for the 2018 Drainage Maintenance
Projects with Lockwood, Andrews, and Newnam, INC.; and
WHEREAS, City staff has identified the need for additional engineering services to finalize
the design of the four remaining projects within the 2018 Drainage Maintenance Projects; and
WHEREAS, pursuant to Section 252.022(a)(4) of the Texas Local Government Code, the
City is not required to seek bids or proposals with respect to a procurement for personal,
professional, or planning purposes; and
WHEREAS, Lockwood, Andrews and Newnam, Inc. is an approved On -Call Engineering
Service for the City of Schertz; and
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes additional expenditures with
Lockwood, Andrews and Newnam, Inc., in a total project amount not to exceed $155,410 for
design, bid, and construction phase engineering services for the 2018 Drainage Maintenance
Projects.
Section 2. The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the laws
of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application of
such provision to other persons and circumstances shall nevertheless be valid, and the City Council
hereby declares that this Resolution would have been enacted without such invalid provision.
Section 6. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final passage,
and it is so resolved.
PASSED AND ADOPTED, this 25t' day of February, 2020.
CITY OF SCHERTZ, TEXAS
Ralph d rrez, ayor
ATTEST:
Brenda Dennis, City Secretary
EXHIBIT A
SCOPE MODIFICATION PROPOSAL
A -1
CITY OF SCHERTZ
PROJECT AGREEMENT FOR PROFESSIONAL SERVICES
This Agreement is entered into in the City of Schertz, Texas, between the City of Schertz, a
Texas municipal corporation, hereinafter called "CITY" and/or "OWNER ", and Lockwood,
Andrews & Newnam, Inc. hereinafter called "CONSULTANT ".
Engineer(s), duly licensed, and practicing under the laws of the State of Texas, hereinafter called
"CONSULTANT ", this Agreement being executed by City pursuant to appropriate action by the
City Council of CITY and by CONSULTANT, for engineering services hereinafter set forth in
connection with the above designated Project for CITY.
ARTICLE 1
DEFINITIONS
ARTICLE 2
SCOPE OF SERVICES
ARTICLE 3
COMPENSATION FOR SERVICES
ARTICLE 4
METHOD OF PAYMENT
ARTICLE 5
TIME, SCHEDULE, AND PERIOD OF SERVICE
ARTICLE 6
COORDINATION WITH CITY
ARTICLE 7
REVISIONS TO DRAWINGS AND SPECIFICATIONS
ARTICLE 8
OWNERSHIP OF DOCUMENTS
ARTICLE 9
TERMINATION AND /OR SUPENSION OF WORK
ARTICLE 10
CONSULTANT'S WARRANTY
ARTICLE 1 I
ASSIGNMENT OR TRANSFER OF INTEREST
ARTICLE 12
INSURANCE REQUIREMENTS
ARTICLE 13
INDEMNIFICATION
ARTICLE 14
CLAIMS AND DISPUTES
ARTICLE 15
SEVERABILITY
ARTICLE 16
ESTIMATES OF COST
ARTICLE 17
INTEREST IN CITY CONTRACTS PROHIBITED
ARTICLE 18
CONFLICTS OF INTEREST DISCLOSURE
ARTICLE 19
STANDARD OF CARE
ARTICLE 20
RIGHT OF REVIEW AND AUDIT
ARTICLE 21
ENTIRE AGREEMENTS
ARTICLE 22
VENUE
ARTICLE 23
NOTICES
ARTICLE 24
INDEPENDENT CONTRACTOR
ARTICLE 25
CAPTIONS
ATTACHMENT 1
PROJECT SCOPE OF SERVICES
ATTACHMENT 2
COMPENSATION
ATTACHMENT 3
BILLING RATE SCHEDULE
ATTACHMENT 4
ADDITIONAL, PROJECTS AND /OR EXPANDED SCOPE
OF SERVICES
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ARTICLE 1: DEFINITIONS
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL HAVE MEANINGS
AS SET OUT BELOW:
Agreement means this Master Agreement between CITY and CONSULTANT that
establishes the terms and conditions for all Projects to be carried out under this
Agreement.
Application for Compensation means the form CONSULTANT uses to make a request
to be paid for completed services.
Application for Payment means the foam CONSTRUCTION CONTRACTOR uses to
make a request to be paid for completed work.
Certificate for Payment means the form CONSULTANT uses to make
recommendations on CONSTRUCTION CONTRACTOR'S Application for Payment.
CITY means the City of Schertz, Texas.
Claim means a demand or assertion by one of the parties seeking, as a matter of right,
adjustment, or interpretation of the terms of this Agreement, payment of money,
extension of time, or other relief with respect to the terms of this Agreement. The term
"claim" also includes other disputes and matters in question between the OWNER and
CONSULTANT arising out of or relating to this Agreement.
Compensation means amounts paid by CITY to CONSULTANT for completed services
under this Agreement.
CONSTRUCTION CONTRACTOR means the firm hired by CITY to construct the
Project.
Construction Contract Documents means the contract between the CITY and the firm
contracted by CITY to construct the Project and all documents therein.
CONSULTANT means the entity named on the cover page of this Agreement and its
officers, partners, employees, agents, and representatives, and all its subconsultants, if
any, and all other persons or entities for which CONSULTANT is legally responsible.
ENGINEER means CITY's City Engineer.
Final Compensation means the final amounts paid by CITY to CONSULTANT for
completed services under this Agreement.
Final Payment means the final amounts paid by CITY to CONSTRUCTION
CONTRACTOR for completed work under the construction contract.
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Opinion of Probable Construction Cost means CONSULTANT'S estimate of probable
construction cost for a Project based on its experience and qualifications as a practitioner
of its profession and the current costs in the local area.
OWNER means the City of Schertz, Texas.
Payment means amount paid by CITY to CONSTRUCTION CONTRACTOR for work
performed under the Construction Contract Documents.
Plans and Specifications means the construction documents.
Project means the capital improvement/construction development undertaking of CITY
for which CONSULTANT'S services, as stated in the Scope of Services, and to be
provided pursuant to this Agreement.
Proposal means CONSULTANT'S proposal to provide services for the Project.
Schedule of Values means the fees allocated to services, reimbursable and/or various
portions of the services or Work, prepared in such form, and supported by such data to
substantiate its accuracy as OWNER may require.
Scope of Services means the services described in Article 4, Scope of Services.
Services means professional services performed by CONSULTANT.
Total Compensation means the amount paid to CONSULTANT under Article 2,
Compensation for Basic Services, of this Agreement.
Work means the labor and materials required to complete a Project by
CONSTRUCTION CONTRACTOR in accordance with the Construction Contract
Documents.
ARTICLE 2: SCOPE OF SERVICES
2.1 CONSULTANT shall not commence work until being thoroughly briefed on the scope of
the Project and being notified in writing to proceed. The scope of the Project and
CONSULTANT'S Services required shall be reduced by CONSULTANT to a written
summary of the scope meeting. That Scope of Services and associated cost, once
approved by CITY, will be included as a part of this Agreement as Attachments 1 and 2
herein. Should the scope subsequently change, either CONSULTANT or CITY may
request a review of the anticipated services, with an appropriate adjustment in
compensation.
2.2 Communications by and with CONSULTANT'S subconsultants shall be through
CONSULTANT. Communications by and with subcontractors and material suppliers shall
be through CONSTRUCTION CONTRACTOR.
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2.3 CONSULTANT, in consideration for the Compensation herein provided, shall render the
professional Services described in this Section that are necessary for the development of
the Project, including plans and specifications, construction management services, any
special and general conditions, and instructions to bidders as acceptable to the Engineer,
or his or her duly authorized representative.
2.4 CONSULTANT shall complete a Project in accordance with the phases in
CONSULTANT'S Scope of Services attached and incorporated herein as Attachments 1
and 2.
2.5 Upon acceptance and approval of the plans, reports or other deliverables required for a
Phase of work, as set forth in the Scope of Services, Engineer shall authorize
CONSULTANT, in writing, to proceed with the next phase of Work.
2.6 During Design Phases CONSULTANT shall:
2.6.1 Coordinate and meet with City staff and Project stakeholders as appropriate
throughout the Project. Assist staff at meetings with stakeholders, workshops,
and presentations to advisory commissions and City Council.
2.6.2 Provide the necessary field survey services to determine the existing field
conditions, including all utilities and surface features to the maximum extent
possible.
2.6.3 CONSULTANT shall make every effort to minimize utility adjustments, where
possible.
2.6.4 In the event electrical, communication, gas or other facilities are encountered,
CONSULTANT shall identify and incorporate those facilities at the completion of
each Project Phase in order to determine the magnitude of any potential
adjustment.
2.6.5 Perform the necessary testing to determine the existing site conditions and proper
design for construction and methods of any necessary demolition.
2.6.6 Follow and comply with the requirements for the Design, Phases listed in this
Agreement, CITY'S Unified Development Code, if applicable, and CITY'S
Design Guidance Manual, both of which are incorporated by reference herein.
2.6.7 In case of conflicts, follow and comply with the most stringent requirements for
the Design Phases.
2.6.8 Prepare documents for, and coordinate with other utilities and associated local,
state, and federal agencies (including TCEQ, EPA, TxDOT, ACOE, etc.) as
required for the approval of all necessary permits (determined during scoping for
each individual project).
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2.6.9 Provide detailed plans and specifications for the Project at appropriate progress
intervals in requested formats (may include hard copy, .pdf, and Awg).
2.6.10 Provide Opinion of Probably Construction Cost.
2.7 During Bid Phase CONSULTANT shall:
2.7.1 Provide unit price bid quantities in City bid form format for use in bid documents.
2.7.2 Provide bid sets of contract, technical specifications, plans, and any other
necessary documents in hard copy and digital format.
2.7.3 Attend pre -bid conference and prepare responses to questions and addenda as
necessary.
2.7.4 Research qualifications and references of apparent low bidder(s) and provide a
letter of recommendation for contract award.
2.8 During Construction Phase:
2.8.1 CONSULTANT shall monitor construction schedule.
2.8.2 CONSULTANT will make a minimum of two visits per month to the Project Site
at intervals appropriate to the Phases to (1) become generally familiar with and to
keep CITY informed about the progress and quality of the portion of the Work
completed, and (2) endeavor to guard CITY against defects in Work. However,
CONSULTANT will not be required to make exhaustive or continuous on -site
inspections to check the quality or quantity of the Work.
2.8.3 CONSULTANT will neither have control over or charge of, nor be responsible
for, the construction means, methods, techniques, sequences or procedures, or for
the safety precautions and programs in connection with the Work since these are
solely CONSTRUCTION CONTRACTOR'S rights and responsibilities under the
Contract Documents. CONSULTANT'S efforts will be directed toward providing
for CITY a greater degree of confidence that the completed Work will generally
conform to the Contract Documents.
2.8.4 CONSULTANT will not be responsible for CONSTRUCTION
CONTRACTOR'S failure to perform the Work in accordance with the
requirements of the Contract Documents. CONSULTANT will not have control
over or charge of and will not be responsible for acts or omissions of
CONSTRUCTION CONTRACTOR, subcontractors, or their agents or
employees, or any other persons or entities performing portions of the Work.
2.8.5 CONSULTANT and CITY have authority to reject Work that does not conform to
the Contract Documents, Whenever CONSULTANT or CITY considers it
necessary or advisable, either CITY or CONSULTANT may require inspection or
testing of the Work whether or not such Work is fabricated, installed or
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completed. However, neither this authority of CONSULTANT or CITY, nor a.
decision made by either, in good faith, to require or not require an inspection shall
give rise to a duty or responsibility of CONSULTANT or CITY to
CONSTRUCTION CONTRACTOR, subcontractors, material and equipment
suppliers, agents or employees, or other persons or entities performing portions of
the Work.
2.8.6 CONSULTANT will review and approve or take other appropriate action upon
CONSTRUCTION CONTRACTOR'S submittals such as Shop Drawings,
Product Data and Samples, but only for the limited purpose of checking for
conformance with information given and the design concept expressed in the
Contract Documents. CONSULTANT will respond to submittals such as Shop
Drawings, Product Data, and Samples pursuant to the procedures set forth in the
Project specifications. Review of such submittals is not conducted for the purpose
of determining the accuracy and completeness of equipment or systems, all of
which remain the responsibility of CONSTRUCTION CONTRACTOR as
required by the Contract Documents. CONSULTANT'S review of
CONSTRUCTION CONTRACTOR'S submittals shall not relieve
CONSTRUCTION CONTRACTOR of its obligations. CONSULTANT'S review
shall not constitute approval of safety precautions or any construction means,
methods, techniques, sequences or procedures unless otherwise specifically stated
by CONSULTANT. CONSULTANT'S approval of a specific item shall not
indicate approval of an assembly of which the item is a component,
2.8.7 CONSULTANT will, within three work days after receipt of CONSTRUCTION
CONTRACTOR'S Application for Payment review the Application for Payment
and either issue to OWNER and/or the affected utility a Certificate for Payment
for such amount as CONSULTANT determines is properly due, or notify
OWNER, any affected utility, and CONSTRUCTION CONTRACTOR in writing
of CONSULTANT'S reasons for withholding recommendation of approval in
whole or in part.
2.8.8 CONSULTANT'S issuance of a Certificate for Payment will constitute a
representation by CONSULTANT to OWNER, based on CONSULTANT'S
evaluation of the Work and the data comprising the Application for Payment, that
the Work has progressed to the. point indicated and that, to the best of
CONSULTANT'S knowledge, information and belief, the quality of the work is
in accordance with the design agreement documents or Construction Contract
Documents. The foregoing representations are subject to an evaluation of the
Work for conformance with the design agreement documents, to results of
subsequent tests and inspections, to correction of minor deviations from the
design agreement documents prior to completion, and to any specific
qualifications expressed by CONSULTANT. The issuance of a Certificate for
Payment based on the CONSTRUCTION CONTRACTOR'S Application for
Payment will further constitute a representation that CONSTRUCTION
CONTRACTOR is entitled to payment in accordance with the Schedule of
Values. The issuance of Certificate for Payment will not be a representation that
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CONSULTANT has (1) made exhaustive or continuous on -site inspections to
check the quality or quantity of the Work, (2) reviewed construction means,
methods, techniques, sequences or procedures, (3) reviewed copies of requisitions
received from Subcontractors and material suppliers and other data requested by
OWNER to substantiate Construction Contractor's right to payment, or (4) made
any examination to ascertain how or for what purpose CONSTRUCTION
CONTRACTOR has used money previously paid on account of the Application
for Payment sum.
2.8.9 CONSULTANT may recommend withholding an approval for Payment in whole
or in part, to the extent reasonably necessary to protect OWNER if, in
CONSULTANT'S opinion, the representations to OWNER required by Section
4.13 cannot be made. If CONSULTANT is unable to recommend approval of
payment in the amount of the Application, CONSULTANT will notify OWNER
and CONSTRUCTION CONTRACTOR as provided in Section 4.12. If OWNER
and CONSULTANT cannot agree on a revised amount, CONSULTANT will
promptly issue a Certificate for Payment for the amount for which
CONSULTANT is able to make such representations to OWNER.
CONSULTANT may also recommend withholding a Payment, because of
subsequently discovered evidence, may modify the whole or a part of a Certificate
for Payment to such extent as may be necessary, in CONSULTANT'S opinion, to
protect OWNER and the affected utility from loss for which CONSTRUCTION
CONTRACTOR is responsible, including loss resulting from acts and omissions
described below:
2,8.9.1 defective Work not remedied;
2.8.9.2 third party claims filed or reasonable evidence indicating probable
filing of such claims for which CONSTRUCTION CONTRACTOR is
responsible hereunder unless security acceptable to OWNER and the
affected utility is provided by CONSTRUCTION CONTRACTOR;
2,8.9.3 failure of CONSTRUCTION CONTRACTOR to make payments
properly to the subcontractors and/or material providers;
2.8.9.4 reasonable evidence that the Work cannot be completed for the unpaid
balance of the agreement sum and CONSTRUCTION CONTRACTOR
has failed to provide OWNER and the affected utility adequate
assurance of its continued performance within a reasonable time after
demand;
2.8.9.5 damage to OWNER or another contractor;
2.8.9.6 reasonable evidence that the Work will not be completed within the
agreement time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay; or
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2.89.7 persistent failure by CONSTRUCTION CONTRACTOR to carry out
the Work in accordance with the Construction Contract Documents.
2.8.10 When the above reasons for withholding payment are removed, payment will be
made for amounts previously withheld. OWNER shall not be deemed in default
by CONSULTANT by reason of withholding payment as provided herein.
2.8.11 CONSULTANT will prepare Change Orders and Field Work Directives, and,
with concurrence of OWNER, OWNER'S designated representative will have
authority to order minor changes in the Work not involving an adjustment in the
Total Compensation or an extension of the time for construction. Such changes
shall be effected by written order, which CONSTRUCTION CONTRACTOR
shall carry out promptly and record on the as -built plan.
2.8.12 Upon written request of CITY or CONSTRUCTION CONTRACTOR,
CONSULTANT will issue its interpretation of the requirements of the Plans and
Specifications. CONSULTANT'S response to such requests will be made in
writing within any agreed time limits or otherwise with reasonable promptness. If
no agreement is made concerning the time within which interpretations required
by CONSULTANT shalt be furnished in compliance with Article IV, then delay
shall not be recognized on account of failure by CONSULTANT to furnish such
interpretations until 15 days after written request is made for CONSULTANT'S
interpretation.
2.8.13 Interpretations of CONSULTANT will be consistent with the intent of and
reasonably inferable from the Construction Contract Documents and will be in
writing or in the form of drawings.
2.8.14 CONSULTANT will advise and consult with CITY. CITY'S instructions to
CONSTRUCTION CONTRACTOR may be issued through CONSULTANT, but
CITY reserves the right to issue instructions directly to CONSTRUCTION
CONTRACTOR through inspectors or other designated CITY representatives.
2.8.15 CONSULTANT and CITY will conduct observations to determine the date of
substantial completion of the Work. CONSULTANT shall provide to CITY a
written recommendation of consideration of substantial completion of the Project.
2.8.16 CONSULTANT and CITY will conduct observations to determine the date of
final completion. CONSULTANT will receive and forward to CITY, for CITY'S
review and records, written warranties and related documents required by the
Construction Contract Documents and assembled by CONSTRUCTION
CONTRACTOR, and will issue a final Approval for Payment upon compliance
with the requirements of the Construction Contract Documents. Such final
Approval will be accompanied by a signed and sealed statement from the
CONSULTANT'S Engineer of Record that certifies to CITY that the project was
constructed in accordance with the approved plans and specifications.
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2.8.17 CONSULTANT shall prepare record drawings from information submitted by
CONSTRUCTION CONTRACTOR and from CONSULTANT'S own
observations in accordance with City standards. CONSULTANT shall provide
record drawings in hard copy, .pdf, and .dwg formats to CITY.
ARTICLE 3: COMPENSATION FOR SERVICES
3.1 Basic Services
3.1.1 Compensation for all Services included in this Agreement will be on a time and
expense not -to- exceed basis in accordance with the negotiated, approved schedule
of billing rates as set forth in Attachment 3. Not -to- exceed compensation
amounts, to the extent they have been negotiated shall be reflected in Attachment
3. A Proposal including a not -to- exceed cost will be provided by
CONSULTANT along with a Scope of Services for each Project (Attachments 1
and 2). The amount to be paid to CONSULTANT, including authorized
adjustments, is the total amount payable by OWNER to CONSULTANT for
performance of the Services for the Project under this Agreement. It is agreed
and understood that such amount will constitute full compensation to
CONSULTANT for Services included in the Scope of Services and shall meet all
requirements of CITY'S design guidelines applicable to the Project. Unless and
until CITY makes further appropriations for any Services not included in the
Scope of Services of this Agreement, the obligation of CITY to CONSULTANT
for Compensation in connection with this Agreement cannot and will not exceed
the sum described in this Section without further amendment to this Agreement.
3. l .2 No billing rate changes from those approved as Attachment 3 of this Agreement
shall be made during the term of this Agreement without the prior written
approval of CITY.
3.1.3 CONSULTANT shall submit monthly invoices to CITY describing the Services
performed the preceding month. CONSULTANT'S invoices shall include the
name of the person who performed the Service, a brief description of the Service
performed and the Phase of the Project to which the Service relates, the date(s)
the Service was performed, the number of hours spent on all Services billed on an
hourly basis, and a description of any subconsultant fees and/or reimbursable
expenditures.
3,1.4 CITY shall reimburse CONSULTANT only for those costs or expenses
specifically approved in this Agreement, or specifically approved in advance by
CITY. Unless otherwise approved, such costs shall be limited and include
nothing more than the following costs incurred by CONSULTANT:
3.1.4.1 Approved reproduction charges,
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3.1.4.2 Actual costs of subconsultant(s) for performance of any of the Services
that CONSULTANT agrees to provide pursuant to this Agreement,
which have been approved in advance by CITY and awarded in
accordance with this Agreement.
3.1.4.3 Actual costs and/or other costs and/or payments specifically authorized
in advance by the CITY in writing and incurred by CONSULTANT in
the performance of this Agreement.
3.1.5 CONSULTANT shall complete the Project in accordance with the phases in
Scope of work. For the purpose of establishing portions of compensation for
separate phases, more particularly described in the Scope of Services, Attachment
2 shall apply.
3.1.6 CONSULTANT shall, within 16 days following receipt of Compensation fiom
OWNER, pay all bills for Services performed and furnished hereunder by
subconsultant(s) of CONSULTANT in connection with the Project and the
performance of services and shall, if requested, provide OWNER with evidence
of such payment. CONSULTANT'S failure to make payments within such time
shall constitute a material breach of this Agreement unless CONSULTANT is
able to demonstrate to OWNER bona fide disputes associated with the Services of
the unpaid subconsultant and its services. CONSULTANT shall include a
provision in each of its sub agreements imposing the same payment obligations on
its subconsultants as are applicable to CONSULTANT hereunder, and if OWNER
so requests, shall provide evidence of such payments by CONSULTANT to
OWNER. If CONSULTANT has failed to make payment promptly to the
subconsultant for undisputed Services for which OWNER has made payment to
CONSULTANT, OWNER shalt be entitled to withhold future payment to
CONSULTANT to the extent remaining unpaid by CONSULTANT necessary to
protect OWNER.
3.1.7 CONSULTANT warrants that title to all deliverables produced in the
performance of Services covered by an Application for Compensation will pass to
OWNER no later than the time of payment. CONSULTANT further warrants that
upon submittal of an Application for Compensation, all Services for which
Applications for Compensation have been previously issued and payments
received from OWNER shall, to the best of CONSULTANT'S knowledge,
information and belief be free and clear of liens, claims, security interests or
encumbrance in favor of CONSULTANT, or other persons or entities under
contract with CONSULTANT making a claim by reason of having provided labor
or services relating to CONSULTANT'S Services. CONSULTANT SHALL
INDEMNIFY AND HOLD OWNER HARMLESS FROM ANY LIENS,
CLAIMS, SECURITY INTEREST OR ENCUMBRANCES FILED BY
ANYONE CLAIMING BY, THROUGH OR UNDER THE ITEMS COVERED
BY PAYMENTS MADE BY OWNER TO CONSULTANT.
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3.2 Additional Services
3.2.1 CONSULTANT shall not receive any compensation for additional Services
without prior written authorization of CITY. Compensation for duly authorized
additional Services shall be paid in accordance with the approved schedule of
billing rates as set forth in Attachment 3.
3.2.2 Examples of additional Services (not all inclusive)
3.2.2.1 Assistance to CITY as an expert witness in any litigation with third
parties arising from the development of construction of a Project
including the preparation of engineering data and reports.
3.2.2.2 Preparation of plats and field notes for acquisition of property.
3.2.2.3 Preparation of applications and supporting documents for governmental
grants, loans, or advances in connection with a Project; preparation of
review of environmental assessment and impact statements; review and
evaluation of the effect on the design requirements of a Project of any
such statements and documents prepared by others; and assistance in
obtaining approval of authorities having jurisdiction over the
anticipated environmental impact of a Project.
3.2.2.4 Making revisions in drawings, specifications, or other documents when
such revisions are inconsistent with written approvals or instructions
previously given, are required by the enactment or revision of codes,
laws, or regulations subsequent to the preparation of such documents or
are due to other causes not solely within the control of
CONSULTANT.
3.2.2.5 Making revisions to drawings or specifications occasioned by
acceptance of substitutions proposed by CONSTRUCTION
CONTRACTOR; and Services after the award of each contract in
evaluating and determining the acceptability of an unreasonable or
excessive number of substitutions proposed by CONSTRUCTION
CONTRACTOR.
3.2.2.6 Preparing drawings, specifications, and supporting data and providing
other Services in connection with change order requests to the extent
that the adjustment in the basic compensation resulting from the
adjusted construction cost is not commensurate with the Services
required of CONSULTANT, provided such change order requests are
required by causes not solely within the control of CONSULTANT; or
in connection with change orders requiring significant engineering
effort to compute and document the Work effort reflected by the
Change Order.
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3.2.2.7 Investigations, surveys, valuations, inventories, or detailed appraisals of
facilities, construction and/or services not required by Project scope.
3.2.2.8 Investigations, surveys, audit, or inventories required in connection
with construction performed by CITY.
3.2.2.9 Additional Services during construction made necessary by:
3.2.2.9.1 Work damaged by fire or other cause during construction.
3.2.2.9.2 A significant amount of defective or neglected work of
CONSTRUCTION CONTRACTOR.
3.2.2.9.3 Failure of performance of CONSTRUCTION
CONTRACTOR.
3.2.2.9.4 Acceleration of the progress schedule required by CITY
involving Services beyond normal working hours.
3.2.2.9.5 Default by CONSTRUCTION CONTRACTOR.
3.2.2.10 Providing extensive assistance in the use of any equipment or system
such as initial start-up or testing, adjusting and balancing, preparation
of operation and maintenance manuals, training personnel for operation
and maintenance, and consultation during operation.
3.2.2.11 Providing Services .relative to future facilities, systems, and equipment
which are not intended to be constructed during the Construction Phase.
3.2.2.12 Services after completion of the Construction Phase, such as
inspections during any guarantee period and reporting observed
deficiencies under guarantee called for in any contract for a Project.
3.2.2.13 Providing Services of geotechnical engineering firm to perform test
borings and other soil or foundation. investigations and related analysis
not included in original Scope of Services for a Project.
3.2.2.14 Additional copies of Construction Contract Documents, review
documents, bidding documents, reports, and or drawings over the
number specified in the original Scope of Services for a Project,
3.2.2.15 Preparation of all documents dealing with 404 permits and railroad
agreements.
3.2.2.16 Providing photographs, renderings, or models for CITY use.
3.2.2.17 Providing aerial mapping Services.
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3.2.2.1 S Providing consulting engineering Services not related to a particular
design or construction Project.
3.3 All Applications for Compensation shall be submitted through Engineer's office.
ARTICLE 4: METHOD OF PAYMENT
4.1 Compensation may be made to CONSULTANT as appropriately indicated on monthly
Applications for Compensation prepared based on hourly rates, not to exceed amounts
estimated for each phase, as described in Article 2 and Attachments 1 and 2 hereof.
4.2 Project Close Out and Final Payment —
4.2.1 CONSULTANT shall not be entitled to final payment unless and until it submits
to OWNER its affidavit that the invoices for services, and other liabilities
connected with the services for which OWNER, or OWNER'S property., might be
responsible have been fully paid or otherwise satisfied or will be paid from final
payment; releases and waivers of liens from all CONSULTANT'S subconsultants
and of any and all other parties required by OWNER that are either unconditional
or conditional on receipt of final payment; certificates of insurance showing
continuation of required insurance coverage; such other documents as OWNER
may request; and consent of surety to final payment.
4.2.2 Final Compensation — The final compensation to be made by CITY to
CONSULTANT will be payable upon submission of the "Record Drawings ".
CONSULTANT agrees to submit "Record Drawings: in print media, electronic
format (.pdf and .dwg formats) and final billing within 45 days of final acceptance
of construction. Additionally, CONSULTANT agrees to submit a statement of
release with the final billing notifying CITY that there is no further compensation
owed to CONSULTANT by CITY beyond the final bill. Final billing shall
indicate "Final Bill — no additional compensation is due to CONSULTANT ".
4.3 OWNER may withhold compensation to such extent as may be necessary, in OWNER'S
opinion, to protect OWNER from damage or loss for which CONSULTANT is
responsible, because of,
4.3.1 delays in the performance of CONSULTANT'S services;
4.3.2 third party claims filed or reasonable evidence indicating probable filing of such
claims unless security acceptable to OWNER is provided by CONSULTANT;
4.3.3 failure of CONSULTANT to make payments properly to subconsultants or
vendors for labor, materials or equipment;
4.3.4 reasonable evidence that CONSULTANT'S work cannot be completed for the
amount unpaid under this Agreement;
43.5 damage to OWNER or CONSTRUCTION CONTRACTOR; or
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4.3.6 persistent failure by CONSULTANT to carry out the performance of its Services
in accordance with this Agreement.
4.4 When the above reasons for withholding are removed or remedied by CONSULTANT,
compensation of the amount withheld will be made within a reasonable time, OWNER
shall not be deemed in default by reason of withholding compensation as provided for in
this Article.
4.5 In the event of any dispute(s) between the parties regarding the amount properly payable
for any Phase or as final Compensation, or regarding any amount that may be withheld by
OWNER, CONSULTANT shall be required to make a claim pursuant to and in
accordance with the terms of this Agreement and follow the procedures provided herein
for the resolution of such dispute. In the event CONSULTANT does not initiate and
follow the claims procedures provided in this Agreement in a timely manner and as
required by the terms thereof, any such claim shall be waived.
4,6 OWNER shall make final compensation for all sums due CONSULTANT not more than
30 days after CONSULTANT'S final Application for Compensation.
4.7 Acceptance of final compensation by CONSULTANT shall constitute a waiver of claims
except those previously made in writing and identified by CONSULTANT as unsettled at
the time of final Application for Compensation.
4.8 CONSULTANT agrees to maintain adequate books, payrolls and records satisfactory to
OWNER and all applicable utility providers in connection with any and all Services
performed hereunder. CONSULTANT agrees to retain all such books, payrolls and
records (including data stored in computer) for a period of not less than four years after
completion of Work. At all reasonable times, OWNER and all applicable utility providers
and their duly authorized representatives shall have access to all personnel of
CONSULTANT and all such books, payrolls and records, and shall have the right to audit
same.
ARTICLE 5: TIME, SCHEDULE, AND PERIOD OF SERVICE
5.1 Prior to commencement, CONSULTANT shall provide CITY with a schedule of Project
Design Phases, Attachment 2.
5.2 Time is of the essence of this Agreement. CONSULTANT shall perform and complete its
obligations for the various Phases of a Project under Section 4, Scope of Services, of this
Agreement in a prompt and continuous manner so as to not delay the development of the
design Services and so as to not delay the construction of the work for the Project in
accordance with the schedules approved by CITY with CONSTRUCTION
CONTRACTOR. Upon review of phase Services, if corrections, modifications,
alterations, or additions are required of CONSULTANT, these items shall be completed
by CONSULTANT before that Phase is approved.
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5.3 CONSULTANT shall not proceed with the next appropriate Phase of Services without
written authorization from the Engineer. CITY may elect to discontinue
CONSULTANT'S Services at the end of any Phase for any reason. Notwithstanding any
other provisions of this Agreement, if circumstance dictates, the Engineer may make
adjustments to the scope of CONSULTANT'S obligations at any time to achieve the
required design.
5.4 CONSULTANT shall not be liable or responsible for any delays due to strikes, riots, acts
of God, national emergency, acts of the public enemy, governmental restrictions, laws or
regulations, or any other causes beyond CONSULTANT'S reasonable control. Within 21
days from the occurrence of any event for which time for performance by
CONSULTANT will be significantly extended under this provision, CONSULTANT
shall give written notice thereof to CITY stating the reason for such extension and the
actual or estimated time thereof If CITY determines that CONSULTANT is responsible
for the need for extended time, CITY shall have the right to make a Claim as provided in
this Agreement.
5.5 Term of Agreement shall be as follows:
5.5.1 This Agreement shall become effective upon the date below and shall remain in
effect until satisfactory completion of the Project unless terminated as provided
for in this Agreement.
ARTICLE 6: COORDINATION WITH CITY
6.1 CONSULTANT shall hold periodic conferences with the Engineer or his or her
representatives to the end that the Project as developed shall have the full benefit of
CITY'S experience and knowledge of existing needs and facilities, and be consistent with
its current policies and standards. To assist CONSULTANT in this coordination, CITY
shall make available for CONSULTANT'S use in planning and designing the Project all
existing plans, maps, statistics, computations and other data in its possession relative to
existing facilities and to this particular Project, at no cost to CONSULTANT. However,
any and all such information shall remain the property of CITY and shall be returned by
CONSULTANT upon termination or completion of the Project or if instructed to do so by
the Engineer.
6.2 The Engineer will act on behalf of CITY with respect to the Services to be performed
under this Agreement. The Engineer shall have complete authority to transmit
instructions, receive information, interpret and define CITY'S policies and decisions with
respect to materials, equipment, elements and systems pertinent to CONSULTANT'S
services.
6.3 CITY will give prompt written notice to CONSULTANT whenever CITY observes or
otherwise become aware of any defect in CONSULTANT'S Services, in the work of
CONSTRUCTION CONTRACTOR, or any development that affects the scope or timing
of CONSULTANT'S Services.
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6.4 All appraisals, notices, and permits shall be furnished by CONSULTANT under the Scope
of Services unless otherwise assigned to CITY in the Scope of Services, Approvals and
permits assigned to CITY shall be obtained from all governmental authorities having
jurisdiction over the Project and such approvals and consents from others as may be
necessary for the completion of the Project. CONSULTANT will provide CITY
reasonable assistance in connection with such approvals and permits such as the
furnishing of data compiled by CONSULTANT pursuant to other provisions of this
Agreement, but CONSULTANT shall not be obligated to develop additional data, prepare
extensive reports or appear at hearings or the like unless compensated therefore under
other provisions of this Agreement.
ARTICLE 7: REVISIONS TO DRAWINGS AND SPECIFICATIONS
7.1 CONSULTANT shall make without expense to CITY such revisions to the drawings,
reports or other documents as may be required to meet the needs of CITY which are
within the Scope of Services, but after the approval of drawings, reports or other
documents and specifications by CITY, any revisions, additions, or other modifications
made at CITY'S request which involve extra services and expenses to CONSULTANT
shall be at additional compensation to CONSULTANT for such additional Services and
expenses in accordance with Article 3 herein.
ARTICLE 8: OWNERSHIP OF DOCUMENTS
8.1 All previously owned documents, including the original drawings, estimates,
specifications, and all other documents and data by CONSULTANT, will remain the
property of CONSULTANT as instruments of service. However, CONSULTANT
understands and agrees that CITY shall have free access to all such information with the
right to make and retain copies of previously owned drawings, estimates, specifications
and all other documents and data. Any reuse without specific written verification or
adaptation by CONSULTANT will be at CITY'S sole risk and without liability or legal
exposure to CONSULTANT.
8.2 All completed documents submitted by CONSULTANT for final approval or issuance of
a permit shall bear the seal with signature and date adjacent thereto of a registered
professional engineer licensed to practice in the State of Texas.
8.3 CONSULTANT acknowledges and agrees that upon payment, CITY shall own
exclusively any and all information in whatsoever form and character produced and/or
maintained in accordance with, pursuant to, or as a result of this Agreement and shall be
used as CITY desires and documents, including the original drawings, estimates,
specifications and all other documents and data shall be delivered to CITY at no
additional cost to CITY upon request or termination or completion of this Agreement
without restriction on future use. However, any reuse without specific written verification
or adaptation by CONSULTANT will be at CITY'S sole risk and without liability to
CONSULTANT.
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8.4 CONSULTANT agrees and covenants to protect any and all proprietary rights of CITY in
any materials provided to CONSULTANT. Such protection of proprietary rights by
CONSULTANT shall include, but not be limited to, the inclusion in any copy intended for
publication of copyright mark reserving all rights to CITY. Additionally, any materials
provided to CONSULTANT by CITY shall not be released to any third party without the
written consent of CITY and shall be returned intact to CITY upon termination or
completion of this Agreement or if instructed to do so by the Engineer.
8.5 CONSULTANT HEREBY ASSIGNS ALL STATUTORY AND COMMON LAW
COPYRIGHTS TO ANY COPYRIGHTABLE WORK THAT IN PART OR IN
WHOLE WAS PRODUCED FROM THIS AGREEMENT TO CITY, INCLUDING
ALL EQUITABLE RIGHTS. NO REPORTS, MAPS, DOCUMENTS OR OTHER
COPYRIGHTABLE WORKS PRODUCED IN WHOLE OR IN PART BY THIS
AGREEMENT SHALL BE SUBJECT OF AN APPLICATION FOR COPYRIGHT
BY CONSULTANT. ALL REPORTS, MAPS, PROJECT LOGOS, DRAWINGS OR
OTHER COPYRIGHTABLE WORK PRODUCED UNDER THIS AGREEMENT
SHALL BECOME THE PROPERTY OF CITY (EXCLUDING ANY PRIOR
OWNED INSTRUMENT OF SERVICES, UNLESS OTHERWISE SPECIFIED
HEREIN). CONSULTANT SHALL, AT ITS EXPENSE, INDEMNIFY CITY AND
DEFEND ALL SUITS OR PROCEEDINGS INSTITUTED AGAINST CITY AND
PAY ANY AWARD OF DAMAGES OR LOSS RESULTING FROM AN
INJUNCTION, AGAINST CITY, INSOFAR AS THE SAME ARE BASED ON ANY
CLAIM THAT MATERIALS OR WORK PROVIDED UNDER THIS
AGREEMENT CONSTITUTE AN INFRINGEMENT OF ANY PATENT, TRADE
SECRET, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL
PROPERTY RIGHTS.
8.6 CONSULTANT may make copies of any and all documents and items for its files.
CONSULTANT shall have no liability for changes made to or use of the drawings,
specifications and other documents by other engineers, or other persons, subsequent to the
completion of the Project. CONSULTANT shall appropriately mark all changes or
modifications on all drawings, specifications and other documents by other engineers or
other persons, including electronic copies, subsequent to the completion of the Project.
8.7 Copies of documents that may be relied upon by CITY are limited to the printed copies
(also known as hard copies) and .pdf- format electronic versions that are sealed and signed
by CONSULTANT. Files in editable electronic media format of text, data, graphics, or
other types (such as .dwg) that are furnished by CONSULTANT to CITY are only for
convenience of CITY or any utility. Any conclusion or information obtained or derived
from such electronic files will be at the user's sole risk. Any reuse without specific written
verification or adaptation by CONSULTANT will be at CMIS sole risk and without
liability to CONSULTANT.
8.8 Notwithstanding anything to the contrary contained herein, all previously owned
intellectual property of CONSULTANT, unless expressly purchased by CITY, including
but not limited to any computer software (object code and source code), tools, systems,
equipment or other information used by CONSULTANT or its suppliers in the course of
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delivering the Services hereunder, and any .know -how, methodologies, or processes used
by CONSULTANT to provide the services or protect deliverables to CITY, including
without limitation, all copyrights, trademarks, patents, trade secrets, and any other
proprietary rights inherent therein and appurtenant thereto shall remain the sole and
exclusive property of CONSULTANT or its suppliers,
ARTICLE 9: TERMINATION ANTI /OR SUSPENSION OF WORD
9.1 Right of Either Party to Terminate for Default
9.1.1 This Agreement may be terminated by either party for substantial failure by the
other party to perform (through no fault of the terminating party) in accordance
with the terms of this Agreement and a failure to cure as provided in this Article
9.
9.l .2 The party not in default must issue a signed, written notice of termination (citing
this paragraph) to the other party declaring the other party to be in default and
stating the reason(s) why they are in default. Upon receipt of such written notice
of default, the party in receipt shall have a period of ten days to cure any failure to
perform under this Agreement. Upon the completion of such 10 -day period
commencing upon receipt of notice of termination, if such party has not cured any
failure to perform, such termination shall become effective without further written
notice.
9.2 Right of CITY to Terminate
9.2.1 CITY reserves the right to terminate this Agreement for reasons other than
substantial failure by CONSULTANT to perform by issuing a signed, written
notice of termination (citing this paragraph) which shall take effect on the
twentieth day following receipt of said notice or upon the scheduled completion
date of the performance Phase in which CONSULTANT is then currently
working, whichever effective termination date occurs first.
93 Right of CITY to Suspend Giving Rise to Right of CONSULTANT to Terminate
9.3.1 CITY reserves the right to suspend this Agreement at the end of any Phase for the
convenience of CITY by issuing a signed, written notice of suspension (citing this
paragraph) which shall outline the reasons for the suspension and the expected
duration of the suspension, but such expected duration shall in no way guarantee
what the total number of days of suspension will occur. Such suspension shall
take effect immediately upon receipt of said notice of suspension by
CONSULTANT.
9.3.1.1 CONSULTANT is hereby given the right to terminate this Agreement
in the event such suspension extends for a period in excess of 120 days.
CONSULTANT may exercise this right to terminate by issuing a
signed, written notice of termination (citing this paragraph) to C1TY
after the expiration of 120 days from the effective date of the
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suspension. Termination (under this paragraph) shall become effective
immediately upon receipt of said written notice by CITY.
9.4 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Termination
9.4.1 Upon receipt of a notice of termination and prior to the effective date of
termination, unless the notice otherwise directs or CONSULTANT immediately
takes action to cure a failure to perform under the cure period set out in this
Article. CONSULTANT shall immediately begin the phase -out and the
discontinuance of all services in connection with the performance of this
Agreement and shall proceed to promptly cancel all existing orders and contracts
insofar as such orders and contracts are chargeable to this Agreement. Within 30
days after receipt of such notice of termination (unless CONSULTANT has
successfully cured a failure to perform) CONSULTANT shall submit a statement
showing in detail the Services performed under this Agreement prior to the
effective date of termination. CITY shall have the option to grant an extension to
the time period for submittal of such statement,
9.4.2 Copies of all completed or partially completed specifications and all
reproductions of all completed or partially completed designs, plans and
attachments prepared under this Agreement prior to the effective date of
termination shall be delivered to CITY, in the form requested by CITY as a
precondition to final payment. These documents shall be subject to the restrictions
and conditions set forth in Article IX above.
9.4.3 Upon the above conditions being met, CITY shall promptly pay CONSULTANT
that proportion of the prescribed Compensation which the Services actually
performed under this Agreement bear to the total Services called for under this
Agreement, less previous payments of the Compensation.
9,4.4 CITY, as a public entity, has a duty to document the expenditure of public funds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of CONSULTANT to comply with the
submittal of the statement and documents as required above shall constitute a
waiver by CONSULTANT of any and all rights or claims for compensation for
services performed under this Agreement by CONSULTANT.
9.4.5 Failure of CONSULTANT to comply with the submittal of the statement and
documents as required above shall constitute a waiver by CONSULTANT of any
and all rights or claims to collect monies that CONSULTANT may otherwise be
entitled to for services performed under this Agreement.
9.5 Procedures CONSULTANT Shall Follow upon Receipt of Notice of Suspension
9.5.1 Upon receipt of written notice of suspension, which date shall also be the
effective date of the suspension, CONSULTANT shall, unless the notice
otherwise directs, immediately begin to phase -out and discontinue all services in
connection with the performance of this Agreement and shall proceed to promptly
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suspend all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement.
9.5.2 CONSULTANT shall prepare a statement showing in detail the Services
performed under this Agreement prior to the effective date of suspension,
9.5.3 Copies of all completed or partially completed designs, plans, and specifications
prepared under this Agreement prior to the effective date of suspension shall be
prepared for possible delivery to CITY but shall be retained by CONSULTANT
until such time as CONSULTANT may exercise the right to terminate.
9.5.4 In the event that CONSULTANT exercises the right to terminate 120 days after
the effective suspension date, within 30 days after receipt by CITY of
CONSULTANT'S notice of termination, CONSULTANT shall promptly cancel
all existing orders and contracts insofar as such orders and contracts are
chargeable to this Agreement and shall submit the above referenced statement
showing in detail the services performed under this Agreement prior to the
effective date of suspension.
9.5.5 Any documents prepared in association with this Agreement shall be delivered to
CITY as a precondition to final payment.
9.5.6 Upon the above conditions being met, CITY shall pay CONSULTANT that
proportion of the prescribed Compensation which the Services actually performed
under this Agreement bear to the total Services called for under this Agreement,
less previous payments of Compensation,
9.5.7 CITY, as a public entity, has a duty to document the expenditure of public funds.
CONSULTANT acknowledges this duty on the part of CITY. To this end,
CONSULTANT understands that failure of Consultant to substantially comply
with the submittal of the statements and documents as required herein shall
constitute a waiver by CONSULTANT of any portion of the Compensation for
which CONSULTANT did not supply such necessary statements and/or
documents.
ARTICLE 10: CONSULTANT'S WARRANTY
10,1 CONSULTANT warrants that it has not employed or retained any company or person
other than a bona fide employee working solely for CONSULTANT to solicit or secure
this Agreement, and that it has not, for the purpose of soliciting or securing this
Agreement, paid or agreed to pay any company or person, commission, percentage,
brokerage fee, gift, or any other consideration„ contingent upon or resulting from the
award or making of this Agreement. For breach of this warranty, CITY shall have the
right to terminate this Agreement under the provisions of Article 9 above.
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ARTICLE 11: ASSSIGNMENT OR TRANSFER OF INTEREST
11.1 CONSULTANT shall not assign or transfer its interest in this Agreement without the prior
written consent of CITY.
ARTICLE 12: INSURANCE REQUIREMENTS
12.1 Prior to the commencement of any Services under this Agreement, CONSULTANT shall
furnish copies of all required endorsements and an original completed Certificate(s) of
Insurance to CITY'S Engineering Department, which shall be clearly identified with the
name of the Project in the Description of Operations block of the Certificate. The original
Certificate(s) shall be completed by an agent and signed by a person authorized by that
insurer to bind coverage on its behalf. CITY will not accept Memorandum of Insurance or
Binders as proof of insurance. The original certificate(s) or form must have the agent's
original signature, including the signer's company affiliation, title and phone number, and
be mailed, with copies of all applicable endorsements, directly from the insurer's
authorized representative to CITY. CITY shall have no duty to pay or perform under this
Agreement until such certificate and endorsements have been received and approved by
CITY'S Engineering Department. No officer or employee other than CITY'S Risk
Manager shall have authority to waive this requirement.
12.2 CITY reserves the right to review the insurance requirements of this Article during the
effective period of this contract and any extension or renewal hereof and to request
modification of insurance coverage's and their limits when deemed necessary and prudent
by CITY'S Risk Manager based upon changes in statutory law, court decisions, or
circumstances surrounding this contract. In no instance will CITY allow modification
whereupon CITY may incur increased risk.
12.3 CONSULTANT'S financial integrity is of interest to CITY. Therefore, subject to
CONSULTANT'S right to maintain reasonable deductibles in such amounts as are
approved by CITY, CONSULTANT shall obtain and maintain in full force and effect for
the duration of this Agreement, and any extension hereof, at CONSULTANT'S sole
expense, insurance coverage written on an occurrence or claims made basis, as
appropriate, by companies authorized and approved to do business in the State of Texas
and with an A.M. Best's rating of no less than A- (VII), in the following types and for an
amount not less than the amount listed:
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INSURANCE REQUIREMENTS
Worker's Compensation*
Employer's Liability
Commercial General (Public) Liability
insurance to include coverage for the
following:
a. Premises Operations
b. Independent Contractors **
c. Products /Completed Operations
d, Personal Injury
e. Contractual Liability
Business Automobile Liability
a, Owned/Leased Vehicles
b. Non -owned Vehicles
c. Hired Vehicles
Professional Liability (CIaims Made Form)
Statutory
$1,000,000/$I,000,000/$1,000,000
For Bodily Injury and Property Damage of
$1,000,000 per occurrence.
$2,000,000 General Aggregate, or its equivalent
in Umbrella or Excess Liability Coverage
Combined Single Limit for Bodily Injury and
property Damage of $1,000,000 per occurrence
$1,000,000 per claim to pay on behalf of the
insured all sums, which the insured shall
become legally obligated to pay as damages to
the extent caused by any negligent act, error, or
omission in the performance of professional
services,
*Alternate Plans must be approved by CITY'S Risk Manager
* *If applicable
12.4 CITY may request and without expense to CITY, to inspect copies of the policies,
declarations page and all endorsements thereto as they apply to the limits required by
CITY, and may request the deletion, revision, or modification of particular policy terms,
conditions, limitations or exclusions (except where policy provisions are established by
law or regulation binding upon either of the parties hereto or the underwriter of any such
policies). CONSULTANT shall attempt to comply with any such requests, subject to the
policy terms and conditions, and shall submit a copy of the replacement certificate of
insurance to CITY at the address provided below within 10 days of the requested change,
in the event the respective insurance companies approve the requested change(s).
CONSULTANT shall pay any costs incurred resulting from said changes.
City of Schertz
Attn: City Engineer
10 Commercial Place
Schertz, TX 78154
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12.5 CONSULTANT agrees that with respect to the above required insurance, all insurance
policies are to contain or be endorsed to contain the following required provisions:
12.5.1 Name CITY and its officers, officials, employees, and elected representatives as
additional insured's by endorsement, as respects operations and activities of, or on
behalf of, the named insured ' performed under contract with CITY, with the
exception of the workers' compensation and professional liability policies;
12.5.2 Provide for an endorsement that the "other insurance" clause shall not apply to the
CITY where CITY is an additional insured shown on the policy if such
endorsement is permitted by law and regulations;
12.5.3 Workers' compensation and employers' liability policies will provide a waiver of
subrogation in favor of CITY; and
12.5.4 Provide 30 calendar days advance written notice directly to CITY of any
suspension, cancellation or non - renewal or material change mi coverage, and not
less than 10 calendar days advance written notice for nonpayment of premium.
12.6 Within five calendar days after a suspension, cancellation or non - renewal of coverage,
CONSULTANT shall provide a replacement Certificate of Insurance and applicable
endorsements to CITY. CITY shall have the option to suspend CONSULTANT'S
performance should there be a lapse in coverage at any time during this Agreement.
Failure to provide and to maintain the required insurance shall constitute a material breach
of this Agreement.
12.7 If CONSULTANT fails to maintain the aforementioned insurance, or fails to secure and
maintain the aforementioned endorsements, CITY may obtain such insurance, and deduct
and retain the amount of the premiums for such insurance from any sums due under the
agreement; however, procuring of said insurance by CITY is an alternative to other
remedies CITY may have and is not the exclusive remedy for failure of CONSULTANT
to maintain said insurance or secure such endorsement. In addition to any other remedies
CITY may have upon CONSULTANT'S failure to provide and maintain any insurance or
policy endorsements to the extent and within the time herein required, CITY shall have
the right to order CONSULTANT to stop performing services hereunder and/or withhold
any payments.) which become due to CONSULTANT hereunder until CONSULTANT
demonstrates compliance with the requirements hereof,
12.8 Nothing herein contained shall be construed as limiting in any way the extent to which
CONSULTANT may be held responsible for payments of damages to persons or property
resulting from CONSULTANT'S or its subconsultant's performance of the Services
covered under this Agreement.
12.9 It is agreed that CONSULTANT'S insurance shall be deemed primary with respect to any
insurance or self insurance carried by CITY for liability arising out of operations under
this Agreement.
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12. 10 It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this Agreement as respects additional insured's.
ARTICLE 13: INDEMNIFICATION
13.1 CONSULTANT, WHOSE WORK PRODUCT AND SERVICES ARE THE
SUBJECT OF THIS AGREEMENT FOR PROFESSIONAL SERVICES, AGREES
TO INDEMNIFY AND HOLD CITY, ITS ELECTED OFFICIALS, OFFICERS,
AND EMPLOYEES HARMLESS AGAINST ANY AND ALL CLAIMS BY THIRD
PARTIES, LAWSUITS, JUDGMENTS, COST, LIENS, LOSSES, EXPENSES,
FEES (INCLUDING REASONABLE ATTORNEY'S FEES AND COSTS OF
DEFENSE), PROCEEDINGS, ACTIONS, DEMANDS, CAUSES OF ACTION,
LIABILITY AND SUITS OF ANY KIND AND NATURE, INCLUDING BUT NOT
LIMITED TO, PERSONAL INJURY (INCLUDING DEATH), PROPERTY
DAMAGE, OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES IS
SOUGHT THAT MAY ARISE OUT OF OR BE OCCASIONED OR CAUSED BY
A NEGLIGENT ACT, ERROR, OR OMISSION OF CONSULTANT, ANY
AGENT, OFFICER, ENGINEER, REPRESENTATIVE, EMPLOYEE,
CONSULTANT OR SUBCONSULTANT OF CONSULTANT, AND THEIR
RESPECTIVE OFFICERS, AGENTS, EMPLOYEES, ENGINEERS AND
REPRESENTATIVES WHILE IN THE EXERCISE OF PERFORMANCE OF
THE SERVICES, RIGHTS OR DUTIES UNDER THIS AGREEMENT. THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO
ANY LIABILITY RESULTING FROM THE NEGLIGENCE OF CITY, ITS
OFFICERS OR EMPLOYEES, IN INSTANCES WHERE SUCH NEGLIGENCE
CAUSES PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE. IN THE
EVENT CONSULTANT AND CITY ARE FOUND JOINTLY LIABLE BY A
COURT OF COMPETENT JURISDICTION, LIABILITY SHALL BE
APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LAWS OF
THE STATE OF TEXAS, WITHOUT, HOWEVER, WAIVING ANY
GOVERNMENTAL IMMUNITY AVAILABLE TO CITY UNDER TEXAS LAW
AND WITHOUT WAIVING ANY DEFENSES OF THE PARTIES UNDER TEXAS
LAW.
13.2 CONSULTANT shall advise CITY in writing within 24 hours of any claim or demand
against CITY or CONSULTANT, known to CONSULTANT, related to or arising out of
CONSULTANT'S activities under this Agreement.
13.3 The provisions of Article 13 are solely for the benefit of the parties hereto and not
intended to create or grant any rights, contractual or otherwise, to any other person or
entity.
13.4 Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work, nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
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drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
ARTICLE 14: CLAIMS AND DISPUTES
14.1 Definition. A Clairn is a demand or assertion by one of the parties seeking, as a matter of
right, adjustment or interpretation of this Agreement's terms, payment of money, and
extension of time or other relief with respect to the terms of this Agreement. The term
"Claim" also includes other disputes and matters in question between OWNER and
CONSULTANT arising out of or relating to this Agreement. Claims must be initiated by
written notice. Every Claim of CONSULTANT, whether for additional Compensation,
additional time, or other relief, shall be signed and sworn to by an authorized corporate
officer (if not a corporation, then an official of the company authorized to bind
CONSULTANT by signature) of CONSULTANT, verifying the truth and accuracy of the
Claim. The responsibility to substantiate Claims shall rest with the party making the
Claim.
14.2 Time Limit on Claims. Claims by CONSULTANT or by OWNER must be initiated
within 30 calendar days after occurrence of the event giving rise to such Claim. Claims by
CONSULTANT trust be initiated by written notice to OWNER. Claims by the OWNER
must be initiated by written notice to CONSULTANT.
14.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise
agreed in writing, CONSULTANT shall proceed diligently with performance of this
Agreement and OWNER shall continue to make payments in accordance with this
Agreement.
14.4 Claims for Additional Time. If CONSULTANT wishes to make Claim for an increase in
the time for performance, written notice as provided in this Article 14 shall be given.
CONSULTANT'S Claim shall, include an estimate of probable effect of delay on progress
of the Work, In the case of a continuing delay only one Claim is necessary.
14.5 Claims for Consequential Damages. Except as otherwise provided in this Agreement, in
calculating the amount of any Claim or any measure of damages for breach of contract
(such provision to survive any termination following such breach), the following
standards will apply both to claims by CONSULTANT and to claims by OWNER,
14.5.1 No consequential damages will be allowed.
14.5.2 Damages are limited to extra costs specifically shown to have been directly
caused by a proven wrong for which the other party is claimed to be responsible.
14.5.3 No profit will be allowed on any damage claim.
Various Drainage Projects Page 25
14.6 No Waiver of Governmental Immunity. NOTHING IN THIS AGREEMENT SHALL
BE CONSTRUED TO WAIVE OWNER'S GOVERNMENTAL IMMUNITY
FROM LAWSUIT, WHICH IMMUNITY IS EXPRESSLY RETAINED TO THE
EXTENT IT IS NOT CLEARLY AND UNAMBIGUOUSLY WAIVED BY STATE
LAW.
ARTICLE 15: SEVERABILITY
15.1 If for any reason, any one or more paragraphs of this Agreement are held invalid or
unenforceable, such invalidity or unenforceability shall not affect, impair or invalidate the
remaining paragraphs of this Agreement but shall be confined in its effect to the specific
section, sentences, clauses or parts of this Agreement held invalid or unenforceable, and
the invalidity or unenforceability of any section, sentence, clause or parts of this
Agreement in any one or more instance shall not affect or prejudice in any way the
validity of this Agreement in any other instance.
ARTICLE 16: ESTIMATES OF COST
16.1 Since CONSULTANT has no control over the cost of labor, materials, or equipment or
over CONSTRUCTION CONTRACTOR'S methods of determining prices, or over
competitive bidding or market conditions, CONSULTANT'S opinions of probable Project
Cost or Construction Cost provided for herein are to be made on the basis of
CONSULTANT'S experience and qualifications and represent CONSULTANT'S best
judgment as a design professional familiar with the construction industry but
CONSULTANT cannot and does not guarantee that bids or the construction cost will not
vary from opinions of probable Cost prepared by CONSULTANT.
ARTICLE 17: INTEREST IN CITY CONTRACTS PROHIBITED
17.1 No officer or employee of CITY shall have a financial interest, directly or indirectly, in
any contract with CITY, or shall be financially interested, directly or indirectly, in the sale
to CITY of any land, materials, supplies or service, except on behalf of CITY as an officer
or employee. This prohibition extends to other CITY boards and commissions, which are
more than purely advisory. The prohibition also applies to subcontracts on CITY projects.
17.2 CONSULTANT acknowledges that it is informed that the Charter of CITY prohibits a
CITY officer or employee, as those terms are defined in the Ethics Code, from having a
financial interest in any contract with CITY or any CITY agency.
17.3 CONSULTANT warrants and certifies, and this Agreement is made in reliance thereon,
that it, its officers, employees and agents are neither officers nor employees of CITY.
CONSULTANT further warrants and certifies that it has tendered to CITY a
Discretionary Contracts Disclosure Statement,
ARTICLE 18: CONFLICTS OF INTEREST DISCLOSURE
18.1 All consultants must disclose if it is associated in any manner with a CITY official or
employee in a business venture or business dealings. To be "associated" in a business
Various Drainage Projects Page 26
venture or business dealings includes being in a partnership or joint venture with the
officer or employee, having a contract with the officer or employee, being joint owners of
a business, owning at least 10% of the stock in a corporation in which a CITY officer or
employee also owns at least 10 %, or having an established business relationship as client
or customer.
ARTICLE 19: STANDARD OF CARE
19.1 Services provided by CONSULTANT under this Agreement will be performed in a
manner consistent with that degree of care and skill ordinarily exercised by members of
the same profession currently practicing under similar circumstances.
19.2 CONSULTANT shall be represented by a registered professional engineer licensed to
practice in the State of Texas at meetings of any official nature concerning the Project,
including but not limited to scope meetings, review meetings, pre -bid meetings, and
preconstruction meetings.
19.3 The Texas Board of Professional Engineers, 1917 IH -35 South, Austin, Texas 78741,
(512) 440 -7723 has jurisdiction over individuals licensed under Title 22 of the Texas
Administrative Code,
19A Acceptance of the final plans by CITY shall not constitute nor be deemed a release of the
responsibility and liability of CONSULTANT, its employees, associates, agents, or
subcontractors for the accuracy and competency of their designs, work drawings, Plans
and Specifications or other documents and Work; nor shall such acceptance be deemed an
assumption of responsibility or liability by CITY for any defect in the designs, work
drawings, Plans and Specifications or other documents and Work prepared by
CONSULTANT, its employees, subconsultants, and agents.
ARTICLE 20: RIGHT OF REVIEW AND AUDIT
20.1 CONSULTANT agrees that CITY may review any and all of the work performed by
CONSULTANT UNDER THIS Agreement. CITY is granted the right to audit, at
CITY'S election, all of CONSULTANT'S records and billings related to perfoimance of
this Agreement. CONSULTANT agrees to retain such records for a minimum of four
years following completion of this Agreement. Any payment, settlement, satisfaction, or
release provided under this Agreement shall be subject to CITY'S rights as may be
disclosed by such audit.
ARTICLE 21: ENTIRE AGREEMENT
21.1 This Agreement, together with Attachments 1, 2, 3, and 4, represents the entire and
integrated agreement between CITY and CONSULTANT and supersedes all prior
negotiations, representations, or agreements, either oral or written. This Agreement may
be amended only by written instrument signed by both CITY and CONSULTANT.
Various Drainage Projects Page 27
ARTICLE 22: VENUE
22.1 The obligations of the parties to this Agreement shall be performable in the City of
Schertz or its Extra Territorial Jurisdiction, located in Bexar, Comal, and Guadalupe
Counties, Texas, and if legal action, such as civil litigation, is necessary in connection
therewith, exclusive venue shall lie in Guadalupe County, Texas.
ARTICLE 23: NOTICES
23.1 Except as may be provided elsewhere herein, all notices, communications, and reports
required or permitted under this Contract shall be personally delivered or mailed to the
respective party by depositing the same in the United States Postal Service addressed to
the applicable address shown below, unless and until either party is otherwise notified in
writing by the other party of a change of such address. Mailed notices shall be deemed
communicated as of five calendar days of mailing. Notices provided via email shall be
deemed communicated as of the next business day after the notice is sent.
If intended for CITY, to!
If intended for CONSULTANT, to:
City of Schertz
Engineering Department
10 Commercial Place
Schertz, Texas 78154
The address listed on the first page of this
Agreement.
ARTICLE 24: INDEPENDENT CONTRACTOR
24.1 In performing services under this Agreement, the relationship between CITY and
CONSULTANT is that of independent contractor. By the execution of this Agreement,
CONSULTANT and CITY do not change the independent contractor status of
CONSULTANT. CONSULTANT shall exercise independent judgment in performing its
duties and obligations under this Agreement and is solely responsible for setting working
hours, scheduling or prioritizing the work flow and determining how the Services are to be
performed. No term or provision of this Agreement or act of CONSULTANT in the
performance of this Agreement shall be construed as making CONSULTANT the agent,
servant or employee of CITY, or as making CONSULTANT or any of its agents or
employees eligible for any fringe benefits, such as retirement, insurance and worker's
compensation, which CITY provides to or for its employees.
ARTICLE 25: CAPTIONS
25.1 The captions for the individual provisions of this Agreement are for informational
purposes only and shall not be construed to effect or modify the substance of the terms
and conditions of this Agreement to which any caption relates.
Various Drainage Projects Page 28
IN WITNESS WHEREOF, the parties to this Agreement hereby execute this Agreement
effective as of , 2018 (the "Effective Date ").
CITY OF SCHERTZ
CfTY MANAGER
CONSULTANT
Consultant Name
TITLE
Various Drainage Projects Page 29
ATTACHMENT 1
PROJECT SCOPE OF SERVICES
Proiect Description
Consultant will provide civil engineering professional consulting services for the City for design,
bid and construction services for various drainage projects as detailed below.
Locations
Various City locations as defined in the specific location Scopes of Services for:
• COLONIES DITCH
• HIDDEN GROVE
• DIETZ ROAD
• CASTLE HILLS
• SCHAEFER ROAD
• OSAGE AVENUE
BASIC SERVICES SCOPE OF WORK FOR ALL LOCATIONS:
CONSULTANT shall:
1. Attend one (l) kick -off meeting, one (l) draft final review meeting, and one (1) final
review meeting prior to procurement.
2. Utilize City of Schertz specifications except where elements of work or complexity of
construction require other specifications.
3. Where applicable, utilize Texas Department of Transportation (TxDOT) Standard
Construction Specifications (2014) or City of San Antonio Standard Construction
Specifications (2007) in order of preference;
4. Aid in the bidding process including answering contractor questions and issuing of
addendums.
S. Provide a representative for pre -bid and bid opening meetings with the City of Schertz.
b. Upon receipt of bid proposals, CONSULTANT shall:
a. Provide a tabulation of bid,
b. call three references of the recommended respondent and
c. provide a letter of recommendation.
7. Attend an on -site pre - construction meeting, one in- progress construction site visit, one
walk - through at completion of construction, and one warranty wall- through at the end of
the warranty period. Each will be documented for CONSULTANT and City benefit and
a copy of the meeting minutes and any deficient items identified will be forwarded to the
City.
8. Identify required submittals and review and comment only on those required submittals.
9. Perform internal quality control reviews of all project deliverables using
CONSULTANT'S own policies and procedures;
Various Drainage Projects Page 30
Project Services Assumptions:
L CONSULTANT assumes sub - consultant attendance at meetings is not required.
2. CONSULTANT for the purposes of pre - submittal meetings, assumes that addenda will
be issued in written word only and revised or conformed drawings are not required.
3. CONSULTANT assumes that any bid alternates proposed will consist of complete
project areas only. Bid alternates within each project area are not included.
4. CONSULTANT assumes full -time construction inspection will be provided by the City.
SITE SPECIFIC SCOPES:
COLONIES DITCH
Site Specific Description and Assumptions:
The project is located downstream of Schertz Parkway generally near the intersection with
Buffalo Drive and extends 275 feet downstream of Schertz Parkway along an unnamed
vegetated ditch. The existing vegetated trapezoidal ditch has developed rills as a result of the
steep slopes of the banks. Additionally, the bottom of the channel has begun to stabilize after
years of inundation. The current condition does not allow for maintenance to preserve channel
capacity. Further, long -term stability of the right bank may cause failure that would intrude into
nearby utilities and the rear yards of adjacent residential lots.
The City of Schertz has proposed the replacement of the existing vegetated channel with a
concrete section. The construction budget for this project has been set by the City of Schertz at
$30,775.
This project is located within a FEMA Zone `AE' tloodplain as demonstrated in Attachment `B'.
CONSULTANT assumes the City of Schertz will provide the Effective hydraulic model for use
in the analysis. The results of the analysis will be documented in a technical memorandum
submitted to the City of Schertz Engineering Department for review, concurrence, and issuance
of a floodplain development permit.
Both the City and CONSULTANT agree to the assumption that no Conditional Letter of Map
Revision (CLOMR) nor Letter of Map Revision (LOMR) are required.
Site Specific Scope:
In addition to the General Scope of services, CONSULTANT shall:
1. Obtain a topographic survey of the area shown in Attachment 'A'. The survey shall
include visible evidence of utilities and the collection of paint markings from using the
Statewide One -Call;
2. Complete the initial contact with utilities suspected to be in the project area and request
maps, redlines, records, etc. as necessary to identify potential conflicts. The
CONSULTANT and City agree to the assumption that if potential or known conflicts are
identified, that the City will coordinate with the utilities to clear the conflict. Where
analysis demonstrates that conflicts exist, a separate proposal will be provided to
complete the coordination once the extent of conflicts are determined.
Various Drainage Projects Page 31
3. Evaluate the hydraulic capacity of the channel in existing and proposed conditions to
identify impacts to adjacent landowners, if any.
4. Obtain a US Army Corps of Engineers Ordinary High -Water Mark (OHWM) and
Jurisdictional Determination (JD) for the area shown in Attachment `A.'
Recommendations for the available permits and additional scope required to obtain them
will be made based on the results of limits of the OHWM and the proposed disturbance
thereof.
5. Obtain a pedestrian cultural resources survey of the area shown in Attachment `A'. A
Texas Historical Commission (THC) Antiquities permit will be obtained for the project
area and incorporate the requirements of the permit obtained into the construction
documents.
6. Prepare a single 11'x17' plan sheet defining the limits of work, estimated quantities, and
OHWM utilizing standard construction details with the assumption that no modified or
special details are required;
7. Prepare an estimate based on the construction plans utilizing best available data;
Deliverables:
1. H&H Technical Memorandum
2. Draft Final Construction Plans and Estimate
3. Final Construction Plans and Estimate
4. Meeting Minutes
HIDDEN GROVE
Site Specific Description and Assumptions:
The existing culvert crossing of Hidden Grove features a drop inlet into three 36 -inch Corrugated
Metal Pipes (CMFs) which daylight into a vegetated trapezoidal channel downstream. The
vegetated channel has a number of grade - control structures which have been undermined
upstream and downstream. The banks of the channel have rills that have formed as the banks
become steeper as the channel thalweg has lowered over time.
The City of Schertz has proposed the replacement of the existing vegetated channel with
underground storm drainage, The construction budget for this project has been set by the City of
Schertz at $136,800.
This project is not located within a FEMA floodplain, see Attachment `D'.
Both the City and the CONSULTANT agree to the assumption that analysis and determination of
downstream impacts from the loss of channel storage is not required.
Both the City and CONSULTANT agree to the assumption that no Conditional Letter of Map
Revision (CLOMR) nor Letter of Map Revision (LOMR) are required.
Various Drainage Projects Page 32
Site Specific Scope:
In addition to the General Scope of services, CONSULTANT shall:
1. Prepare a topographic survey of the area shown in Attachment `C'. The survey shall
include visible evidence of utilities and the collection of paint markings from using the
Statewide One -Call;
2. Complete the initial contact with utilities suspected to be in the project area and request
maps, redlines, records, etc. as necessary to identify potential conflicts. The
CONSULTANT and City agree to the assumption that if potential or known conflicts are
identified, that the City will coordinate with the utilities to clear the conflict. Where
analysis demonstrates that conflicts exist, a separate proposal will be provided to
complete the coordination once the extent of conflicts are determined.
3. Evaluate the hydraulic capacity of the channel in existing and proposed conditions to
identify impacts to adjacent landowners, if any.
4. Design the underground storm drainage with a 25 -year capacity flowing under pressure.
An overflow section above the storm drainage will be provided to convey the 100 year
event;
S. The CONSULTANT and City agree to the assumption that the storm drainage will
daylight upstream of the Dimrock Street headwall to avoid the need for a cast -in -place
structure to connect the cross culvert and the proposed storm drain. Where analysis
demonstrates that a structure is necessary, a separate proposal for the design of the
structure shall be provided to the City by the CONSULTANT.
6. Prepare two (2) 11'x17' plan and profile sheets defining the limits of work, estimated
quantities, and applicable details.
7. Utilize standard construction details assuming no modified or special details are required;
8. Prepare an estimate based on the construction plans utilizing best available data.
Deliverables:
1. H &H Technical Memorandum
2. Draft Final Construction Plans and Estimate
3. Final Construction Plans and Estimate
4. Meeting Minutes
DIETZ ROAD
Site Specific Description and Assumptions:
The project is located at the intersection of Borgfeld and Dietz Roads, The existing vegetated
swale between the residential lots and Dietz Road is poorly graded and difficult to maintain.
Given the close proximity of the swale to residential lots, its unsightly nature, and the difficulty
to maintain, the City would Like to eliminate the vegetated swale.
The City of Schertz has proposed the replacement of the existing vegetated swale with a concrete
lined ditch. The proposed solution is to regrade the ditch on the west side of the road and create
a cross culvert at the intersection with Borgfeld. The cross culvert will outfall into the ditch
along the east side of the roadway. Doing so would eliminate overflow of the newly constructed
Various Drainage Projects Page 33
sidewalk return at Borgfeld Road and allow for future extension of the sidewalk along Dietz
Road. The construction budget for this project has been set by the City of Schertz at $26,000.
This project is located within a FEMA Zone `AE' floodplain, see Attachment `F'. As the project
is not located in or adjacent to the flooding source no detailed floodplain hydraulic analysis is
assumed.
Both the City and CONSULTANT agree to the assumption that no Conditional Letter of Map
Revision (CLOMR) nor Letter of Map Revision (LOMB) are required.
Both the City and CONSULTANT agree to the assumption that the storm drainage will be
daylighted at East Dietz Creek with a conventional TxDOT "CH" type headwall. It is also
assumed that scour analysis, energy dissipation/attenuation at outfall are not required
Site Specific Scope:
In addition to the General Scope of services, CONSULTANT shall:
1. Obtain a topographic survey of the area shown in Attachment 'E'. The survey shall
include visible evidence of utilities and the collection of paint markings from using the
Statewide One -Call.
2. Complete the initial contact with utilities suspected to be in the project area and request
reaps, redlines, records, etc. as necessary to identify potential conflicts. The
CONSULTANT and City agree to the assumption that.if potential or known conflicts are
identified, that the City will coordinate with the utilities to clear the conflict. Where
analysis demonstrates that conflicts exist, a separate proposal complete the coordination
once the extent of conflicts are determined.
3. Document the impact of the project on floodplain conveyance.
4. Document and submit to the City of Schertz Engineering Department for review a
technical memorandum for the purpose of obtaining concurrence, and issuance of a
floodplain development permit
5. Prepare a two (2) 11'x17' plan and profile sheets defining the limits of work, and
estimated quantities utilizing standard construction details. Both the City and
CONSULTANT agree to the assumption that no modified or special details are required.
Prepare an estimate based on the construction plans utilizing best available data.
Deliverables:
1. H&H Technical Memorandum
2. Draft Final Construction Plans and Estimate
3. Final Construction Plans and Estimate
4. Meeting Minutes
Various Drainage Projects Page 34
CASTLE MLLS
Site Specific Description and Assumptions:
The project is located downstream of the Fairway Ridge interceptor channel which outfalls into
the Northcliffe Golf Course. Existing channel conditions are unstable as a result of the frequent
inundation and high velocity runoff from the recently developed subdivisions upstream. As a
result of these conditions channel maintenance used to maintain the capacity of the channel is
made difficult by the rills and scour within the banks of the channel.
The City of Schertz has proposed the replacement of the existing vegetated channel with a
concrete trapezoidal channel. The construction budget for this project has been site by the City
of Schertz at $203,544.
This project is not located within a FEMA floodplain as detailed in Attachment `H.'
Both the city and CONSULTANT agree to the assumption that City will obtain temporary
construction easements and associated survey from the Northcliffe Golf Course. It is also further
assumed that City will provide direction on any items affecting the awarded contractor's scope of
work or limitations on construction required by the negotiation of the temporary easement.
Both the City and CONSULTANT agree to the assumption that downstream impacts from the
loss of channel storage is not required by the City.
Both the City and CONSULTANT agree to the assumption that no Conditional Letter of Map
Revision (CLOMR) nor Letter of Map Revision (LOMB) are required.
Site Specific Scope:
In addition to the General Scope of services, CONSULTANT shall.:
1. Obtain a topographic survey of the area shown in Attachment `G'. The survey shall
include visible evidence of utilities and the collection of paint markings from using the
Statewide One -Call.
2. Complete the initial contact with utilities suspected to be in the project area and request
maps, redlines, records, etc. as necessary to identify potential conflicts. The
CONSULTANT and City agree to the assumption that if potential or known conflicts are
identified, that the City will coordinate with the utilities to clear the conflict. Where
analysis demonstrates that conflicts exist, a separate proposal will be provided to
complete the coordination once the extent of conflicts are determined.
3. Attend one (1) on -site meting with Lower Colorado River Authority (LCRA) due to the
location of the proposed improvements to a LCRA overhead transmission easement
within the project limits.
4. Obtain a Letter of Authority from LCRA to place the concrete channel within their
easement and provide time for reasonable coordination related thereto.
5. Attend one (1) meeting with Northcliffe Golf Course for coordination of proposed
improvements and their potential effect on golf course operations.
6. Evaluate the hydraulic capacity of the channel in existing and proposed conditions to
identify impacts to adjacent landowners, if any. The results of the analysis shall be
Various Drainage Projects Page 35
documented in a technical memorandum submitted to the City of Schertz Engineering
Department for review and concurrence.
7. Document and submit to the City of Schertz Engineering Department for review a
technical memorandum for the purpose of obtaining concurrence.
8. Prepare a two (2) 11'x17' plan and profile sheets defining the limits of work, and
estimated quantities utilizing standard construction details. Both the City and
CONSULTANT agree to the assumption that no modified or special details are required.
9. Prepare an estimate based on the construction plans utilizing best available data.
Deliverables.
1. H &H Technical Memorandum
2. Draft Final Construction Plans and Estimate
3. Final Construction Plans and Estimate
4. Meeting Minutes
SCHAEFER ROAD
Site Specific Description and Assumptions:
The project is located west of the intersection of Schaefer Road and McCoy Woods Street.
When the adjacent residential subdivision Laurel Heights was constructed, the developer
constructed half of the bar ditch with concrete rip -rap and the other half remained vegetation.
Due to the adjustment of the channel slope the vegetated portion is too steep to remain stable.
The City of Schertz has proposed the replacement of the existing vegetation with concrete rip -
rap. The construction budget for this project has been set by the City of Schertz at $13,600.
This project is not located within a FEMA floodplain as detailed in Attachment `J'
Both the City and CONSULTANT agree to the assumption that no evaluation of hydraulic
capacity is required.
Site Specific Scope:
In addition to the General Scope of services, CONSULTANT shaft:
1. Obtain a topographic survey of the area shown in Attachment `I'. The survey shall
include visible evidence of utilities and the collection of paint markings from using the
Statewide One -Call.
2. Complete the initial contact with utilities suspected to be in the project area and request
maps, redlines, records, etc. as necessary to identify potential conflicts. The
CONSULTANT and City agree to the assumption that if potential or known conflicts are
identified, that the City will coordinate with the utilities to clear the conflict. Where
analysis demonstrates that conflicts exist, a separate proposal complete the coordination
once the extent of conflicts are determined,
3. Prepare a single 1 ]'x17' plan and profile sheet defining the limits of work, and estimated
quantities utilizing standard construction details. Both the City and CONSULTANT
agree to the assumption that no modified or special details are required.
Various Drainage Projects Page 36
4. Prepare an estimate based on the construction plans utilizing best available data.
Deliverables:
1. Draft Final Construction Plans and Estimate
2. Final Construction Plans and Estimate
3. Meeting Minutes
OSAGE AVENUE
Site Specific Description and Assumptions:
The project is located between Osage Avenue upstream and Jasmine Drive downstream west. of
Lotus Park. The existing vegetated channel utilizes concrete grade control structures to create
stable channel slopes. Due to the frequency of inundation by the urbanized watershed upstream
the channel bottom has eroded and is contributing to undermining of the existing grade control
structures.
The City of Schertz has proposed the replacement of the existing vegetated channel with a
concrete trapezoidal channel. The construction budget for this project has been set by the City of
Sebertz at $143,111.00.
This project is not located within a FEMA floodplain as detailed in Attachment `L'.
Both the city and CONSULTANT agree to the assumption that City will obtain temporary
construction easements and associated survey from the Northchffe Golf Course. It is also further
assumed that City will provide direction on any items affecting the awarded contractor's scope of
work or limitations on construction required by the negotiation of the temporary easement.
Both the City and CONSULTANT agree to the assumption that downstream impacts from the
loss of channel storage is not required by the City.
Both the City and CONSULTANT agree to the assumption that no Conditional Letter of Map
Revision (CLOMR) nor Letter of Map Revision (LOMR) are required.
Site Specific Scope:
In addition to the General Scope of services, CONSULTANT shall:
1. Obtain a topographic survey of the area shown in Attachment `K'. The survey shall
include visible evidence of utilities and the collection of paint markings from using the
Statewide One -Call,
2. Complete the initial contact with utilities suspected to be in the project area and request
maps, redlines, records, etc. as necessary to identify potential conflicts. The
CONSULTANT and City agree to the assumption that if potential or known conflicts are
identified, that the City will coordinate with the utilities to clear the conflict. Where
analysis demonstrates that conflicts exist, a separate proposal complete the coordination
once the extent of conflicts are determined.
3. Evaluate the hydraulic capacity of the channel in existing and proposed conditions to
identify impacts to adjacent landowners, if any. The results of the analysis shall be
Various Drainage Projects Page 37
documented in a technical memorandum submitted to the City of Schertz Engineering
Department for review and concurrence.
4. Document and submit to the City of Schertz Engineering Department for review a
technical memorandum for the purpose of obtaining concurrence.
S. Prepare a three (3) 11'x17' plan and profile sheets defining the limits of work, and
estimated quantities utilizing standard construction details. Both the City and
CONSULTANT agree to the assumption that no modified or special details are required.
6. Prepare an estimate based on the construction plans utilizing best available data.
Deliverables:
1. H &H Technical Memorandum
2. Draft Final Construction Plans and Estimate
3. Final Construction Plans and Estimate
4. Meeting Minutes
Related Services not included within the Basic Scope of Services:
The following related tasks are not included with the basic scope of services. These services, not
currently deemed necessary, will be if necessary obtained separately by City. Additional City
requested work of the CONSULTANT may require an additional task request. Any such
requests shall require an amendment to this agreement and may require Council approval for
funding and authorization. No additional work may be authorized without written approval to
amend the agreement.
1. Right of Way acquisition services.
2. Geotechnical reports.
3. Environmental reports or studies.
4. CLOMR or LOMB submittals or any related study.
5. Utility coordination beyond that already noted.
Various Drainage Projects Page 38
ATTACHMENT 2
COMPENSATION
LUMP SUM BY PHASE PAYMENT METHOD FOR BASIC SERVICES
AND A NOT TO EXCEED AMOUNT FOR SUPPLEMENTAL SERVICES
1.1 Compensation for all fees, costs, expenses and services defined by this Contract shall be
compensated at a Not-To-Exceed amount of $ 137,645.50 — One Hundred Thirty-Seven
Thousand Hundred Thirteen Dollars and No Cents, including expenses (the "Contract Price "),
and it is agreed and understood that this amount, when earned, will constitute full compensation
to the Professional.
1.2 This Contract Price is the sum of the phases as provided for by the Tasks and Expenses as
detailed in the following schedule of values:
Projects Task
AMOUNT
Task 1— Design Phases for various projects
$ 81,270.00
Task 2 — Bid Phases
$ 3,090.00
Task 3 — Construction and Closeout Phases
$12,230.00
Miscellaneous Expenses
$ 530.00
Sub - Consultants
S30,525.50
1.3 Basic Design Services
The portion of the Contract Price allocated for Basic Design Services as provided for in
Exhibit A shall be the lump sum amount of $127,645.50 — One hundred Twenty -Seven
Thousand, Six Hundred Forty -Five Dollars and No Cents. Of this amount, Thirty
Thousand Five Hundred Twenty -Five Dollars and Fifty Cents - $ 30,525.50, is allocated
for Sub - Consultant Fees.
1.4 Miscellaneous Expenses
The portion of the Contract Price allocated for Miscellaneous Expenses for Mileage and
Reproduction of Plans & Specifications shall be the lump sum amount of $ 530.00 — Five
Hundred Thirty Dollars and No Cents.
1.5 Supplemental Services (Apart from Basic Services)
An allowance of $10,000.00 — Ten Thousand Dollars and No Cents has been allowed
for in this Contract Agreement.
1.6 Rate Table
For the purpose of establishing costs to the City of Scbertz for any negotiated
supplemental services payable on an hourly rate basis authorized in writing by the City of
Schertz, the Hourly Billing Rate Table in Attachment 3 shall apply.
Various Drainage Projects Page 39
L7 Professional shall submit monthly Applications for Progress Payment that shall
separately itemize the following:
1. The relevant Consulting Fee to date progress payment due for the City approved
number of hours for each discipline and in accordance the rate table in Exhibit B.
2. Separate line item entries which identify all Additional Services which were
approved in advance and in writing by City and which were completed during the
preceding month. Consultants submittal for these Additional Costs shall include:
(a) a copy of Owners prior written approval: and (b) an itemization of all
Reimbursable Expenses attributable to each separate item of Additional Service
performed and incurred during the preceding month.
Various Drainage Projects Page 40
ATTACHMENT 3
BILLING RATE SCHEDULE
Discipline
Hourly Rate
Principal QAQC Manager
$ 220.00
Senior Project Manager
$ 190.00
Senior Project Engineer
$ 150.00
Project Engineer
$ 130.00
Engineer -in- Training 111
$ 125.00
Engineer -in- Training lI
$ 95.00
Construction Field Representative
$ 95.00
CADD Designer H
$ 85.00
Administrative
$ 65.00
Various Drainage Projects Page 41
ATTACHMENT 4
ADDITIONAL SERVICES AND /OR EXPANDED SCOPE OF SERVICES
To be completed as necessary.
CITY OF SCHERTZ CONSULTANT
2==::=
NAGER
Consultant Name
TITLE
Various Drainage Projects Page 42
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December 9, 2019
(Revised February 12, 2020)
Scott McClelland, EIT
Project Manager
City of Schertz, Engineering Department
10 Commercial Place
Schertz, Texas 78154
RE: 2020 Drainage Maintenance Projects
Modification to Project Scope
Dear Mr. McClelland:
Lockwood, Andrews
& Newnam, Inc.
A LEO A DALY COMPANY
Lockwood, Andrews & Newnam, Inc. (LAN) has received your request to complete the minor design revisions, bidding,
and construction phase services for four of the remaining five projects not already constructed in the 2018 Drainage
Maintenance Project documents. The current contract with the city of Schertz for the 2018 Drainage Maintenance
Projects has a remaining balance of $4,892.00 for "construction and close -out phase" services and an unused
"supplemental services" budget of $10,000.00 for a total of $14,892.00.
Attached as attachment 'A' is a scope of work which captures the work discussed during our November 22, 2019 meeting
and the additional subsurface utility investigation discussed during our field meeting on January 30, 2020. An estimate
of the level of effort required to complete the scope of work has been prepared and is attached as attachment 'B' to this
letter. A summary of the lump sum costs are summarized by task below:
Survey Verification (Lump Sum)
$3,280.00
Sub - surface Utility Investigation (Time & Materials)
$10,200.00
Drawing Revisions & Bid Document Preparation (Lump Sum)
$6,240.00
Bid Phase (Lump Sum)
$2,300.00
Construction Phase (Lump Sum)
$8,510.00
Labor Total
$30,530.00
Other Direct Costs (Expenses)
$934.00
Grand Total
$31,464.00
Based on the remaining funds in the current contract, a supplemental increase in the contract amount of $16,572.00 will
be needed. Upon reviewing the attachments, provided they meet the city's expectations, please notify LAN of your
acceptance so that we may immediately begin the work. Performance of survey verification, drawing revisions and bid
document preparation can be completed prior to obtaining the supplemental increase in contract amount by obtaining
partial authorization from you.
Please contact our office if you have any questions or concerns.
Sincerely,
Justin . Murray, P
Project Manager
10101 Reunion Place, Ste 200 • San Antonio, Texas 78216 • 210.499.5082 • Fax: 210.499.5157 • www.lan- Ine.com
Scope of Work
Attachment `A'
Project Description
Lockwood, Andrews & Newnam, Inc. (CONSULTANT) completed the design of the 2018 drainage
maintenance project package on July 20, 2018. Due to budgetary limitations the city of Schertz (CITY)
deferred construction of five of the projects to a later date. Two of the projects were constructed and
final payment made in October 2019. The following scope of services is being proposed to utilize the
remaining consultant fee budget to update drawings, package for bidding, complete bid documents, and
conduct construction oversight.
Basic Services
Survey Verification (M &S Surveying)
1. CONSULTANT will retain M & S Surveying, Inc. (SUB- CONSULTANT) to provide surveying services;
2. SUB - CONSULTANT will complete verification of the control which was portrayed on the control
sheets dated April 23, 2018;
3. SUB - CONSULTANT will obtain inverts at the upstream and downstream manholes of the sanitary
sewer crossing of the proposed storm drainage system at the intersection of Dietz and Borgfield
Roads;
4. SUB- CONSULTANT will provide updated drawings and CAD reference files for updated control
and utility survey information.
Sub - Surface Utility Investigation (SoftDig)
1. SUB - CONSULTANT will complete surface Qualitv Level B for the area where Quality Level A will
be collected;
a. SUB - CONSULTANT will designate, record and mark the approximate horizontal location
(accurate within 12± in.) of existing utilities by geophysical prospecting techniques;
b. SUB - CONSULTANT will use its best professional expertise and geophysical prospecting
techniques to designate subsurface utilities._ SUB - CONSULTANT does not guarantee that
utilities marked constitute all utilities within the proiect area;
c. SUB- CONSULTANT uses electromagnetic equipment and GPR, however„ there exists the
Possibility that due to circumstances beyond the control of the designating technicians,
utilities may be non - detectable or the horizontal location mark is not directly over the
centerline of the utility;
i. The following factors may limit or exceed the capabilities, accurwc and
reliability of the geophysical equipment: composition of the utility structure
(non- metallic), soil characteristics (mineral content, debris, rocks), salinity of
ground water, depth of utility, surface covering, embedded structures (re -bar,
wire mesh), confined spaces and external interference (power lines, guard rails,
traffic, rail lines);
ii. Utility depths obtained by instrument readings (only if requested by client) are
not guaranteed and are not to be used for design or basis for construction.
Clients relying on instrument reading of depths do so at their own risk. True
depth is only obtained by exposing the utility.
Page 1 of 4
Scope of Work
Attachment 'A'
2. SUB - CONSULTANT will complete Quality Level A locates as indicated on the attached Exhibit 1;
3. SUB - CONSULTANT will provide routinely and normally carried cones and warning signs for
Maintenance of Traffic. Traffic conditions, location of test holes in roadway and permit
requirements may require other devices T.M.A. arrow boards etc. and/or fla ers or Polic e
detail. Such costs will be invoiced as an expense;
4. SUB - CONSULTANT will coordinate with utility company inspectors as required by the resultant
agreement and by law:
5. SUB- CONSULTANT will neatly cut and remove existing paving, with the cut area not exceeding
12 in. x 12 in. Excavate using the SUB- CONSULTANT's vacuum excavation system.
6. SUB - CONSULTANT will excavate test holes with care as to prevent damage to utilities, however,
any damage resulting from the condition of the utility due to age, burial conditions, covering,
etc. is not the responsibility of SUB- CONSULTANT.
7. SUB - CONSULTANT will backfill with excavated material and compact in 6 inch lifts.
8. SUB- CONSULTANT will furnish, install and color -code a permanent above - ground marker e.g.
P.K. nail, peg, steel pin, or hub) directly above the centerline of the structure, as well as "down
the hole" color -coded plastic ribbon.
9. SUB - CONSULTANT will provide a bituminous cold patch of pavement within the limits of the
original cut at the time of backfill. If the test hole is excavated in an area other than the
roadway pavement, the area disturbed will be restored to the condition prior to excavation.
Excluded from this provision would be any disturbance to sub soil and ground water conditions
that may result in a "quick condition" or "bubbling" of water to the surface from hydrostatic
pressure release resulting from excavation and through no fault of SUB - CONSULTANT. Also
excluded is restoring pavement with hot mixed /hot laid bituminous pavement or keyholing
operations.
10. SUB - CONSULTANT will provide the following test hole information:
a. Elevation of top and/or bottom of utility tied to vertical control provided, to within 0.01
ft. If control is not provided, control will be assumed.
b. Locate the test hole by swing ties to 3 physical objects.
c. Elevation of existing grade over utility at test hole to within 0.01 ft.
d. Outside diameter of pipe or width of duct banks and configuration of non - encased
multi- conduit systems.
e. Utility structure material comoositions, and condition when possible.
f. Pavement thickness, generalized soil type and unusual conditions.
g. Should suspected hazardous material be encountered in the test hole, SUB
CONSULTANT crews will immediately contact the client representative and our office.
We will also comply with DOT Hazardous Material Regulation Procedures.
Assumptions:
• Test holes shall be terminated if subsurface conditions {rock, boulders, ground water, soil
conditions soil cave in trash debris or excessive depth) prevent advancement of excavation to
expose the utility or to reach required depth.
Page 2 of 4
Scope of Work
Attachment 'A'
Drawing Revisions and Bid Document Preparation LAN
1. CONSULTANT will assemble a drawing set for the four projects to be included in the bidding:
Area 1— Colonies Ditch; Area 3— Castle Hills; Area 5 —Osage Ditch; and, Area 6 —Dietz Road;
2. CONSULTANT will contact utility service providers suspected to the be in the area of the
proposed projects to obtain updated utility maps;
3. CONSULTANT will utilize the updated utility maps to revise the drawings and provide plan view
conflict resolution;
4. CONSULTANT will meet on -site with AT &T to kick -off the design of relocation of the multiple
telephone crossings at Area 6 —Dietz Road;
5. CONSULTANT will update the drawing details for the project to provide a bid alternative for
concrete riprap at Area 1— Colonies Ditch;
6. CONSULTANT will utilize the Guadalupe County Parcel data to update the drawings for Area 3—
Castle Hills to show property boundaries and label such as "apparent property line;"
7. CONSULTANT will show limits of drainage easement on Castle Hills Ditch and adjust limits of
work to stay within easement;
8. CONSULTANT will modify Engineers Joint Contract Documents Committee (EJCDC) bid and
contract documents, as revised by CITY, to complete bid specifications for the project;
Bid Phase LAN
1. CONSULTANT will attend a pre -bid meeting at CITY offices during bidding;
2. CONSULTANT will respond to requests for clarification made during bidding;
3. CONSULTANT will attend the bid opening, review bid responses, prepare a tabulation of the bids
received, and a recommendation of award;
Construction Phase LAN
1. CONSULTANT will complete the Agreement between Owner and Contractor using the awarded
bidders bid and contact information;
2. CONSULTANT will attend a pre- construction meeting at CITY offices;
3. CONSULTANT will conduct weekly site visits during construction to review general conformance
with the project plans and specifications. The visits will be documented in field observation
reports and submitted to CITY. For the purposes of this scope CONSULTANT has assumed a six
month duration for construction;
4. CONSULTANT will review contractor pay applications and make a recommendation for payment
to CITY;
5. CONSULTANT will attend a substantial completion walkthrough with CITY and prepare a list of
punch list items that must be corrected prior to release of final payment;
6. CONSULTANT will conduct a final walkthrough with CITY and prepare a recommendation for
acceptance letter to CITY.
Deliverables
• 100% Issued for Bid Set;
• 100% Issued for Construction Set;
• Bid Specifications
Page 3 of 4
Scope of Work
Attachment 'A'
• Bid Tabulation & Recommendation for Award
• Field observation reports
• Substantial Completion Walkthrough Letter
• Recommendation of Acceptance
Page 4 of 4
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